Logically Inconsistent

Interpret the Law

The Supreme Court of the United States has a duty to “interpret” the laws passed by Congress. The Court also determines whether those laws are consistent with the United States Constitution.   All of that seems pretty cut and dried – but of course, it’s not.  The “cut and dried” cases are all determined at the lower court levels.  It’s always the hard ones, the fifty-fifty cases, that reach the highest court in the land.

Trying to guess how the nine Justices will come down on any of the “fifty-fifty” cases is always tough.  And one area that is most difficult to call, is the one involving “administrative law”.  When Congress creates laws, they often include creating some agency to figure out the details.  How far can the agency can go, how much authority it has, what limits are applied? What determines the  extent of that agency’s power often is decided by the Supreme Court.  But one thing is sure – normally the Court deals in “law”, not in “facts”,

Last week, we saw two examples of this process.  The first was about the power of the Food and Drug Administration (FDA). The second is the authority of the Bureau of Alcohol and Tobacco and Firearms (ATF).

Drugs

It’s actually pretty simple.  Congress didn’t want to be in a position of approving every single drug created in our changing world.  They neither had the time, nor more importantly, the expertise, to make those decisions.  Citing their Constitutional power to control interstate commerce, Congress wrote the Pure Food and Drug Act at the beginning of the 20^th century.  They delegated those powers to the FDA, created in 1906.  The administration ended the era when drugs like cocaine were in soft drinks and “elixirs”: the original “coca” in  Coca Cola.   

So instead of every new drug, cancer treatment, weight loss breakthrough or blood pressure medication going through Congress, decided on by 535 non-experts; it’s the FDA’s job.  Imagine the Pfizer Covid vaccine undergoing the “legislative process”.  Instead, it went through a careful scientific process of evaluation, and final approval by the FDA. 

Judges with Agendas

So it was a shock when “rogue” Federal District Judge Matthew Kacsmaryk  in Amarillo, Texas, ruled the abortion drug Mifepristone was dangerous, even though it was FDA approved more than two decades before.  Kacsmaryk is an avowed “anti-abortion” judge, and the only Federal judge located in Amarillo. As such, his is the target court for those trying to get Federal anti-abortion rulings.  And it worked.  The surprise wasn’t his ruling, but that on appeal the 5^th Circuit Court of Appeals agreed with him. It brought into question the entire FDA drug approval process.

The case went to the Supreme Court, where the majority ruled to keep the FDA decision in place.  If you are in favor of access to Mifepristone, that’s the good news. But, they also based their ruling on a legal technicality, declaring that the group that brought the case in the first place, “the Alliance for Hippocratic Medicine”, failed to prove that they should have standing in the case.  That’s the bad news. Practically, this kept Mefepristone on the market for the moment. But the Court did not get to the basic question of the role of Federal agencies, and they didn’t preclude other groups from raising the question (probably in Amarillo) in a different way.  In the end, the decision only decided that “the Alliance” couldn’t sue, not that the FDA could decide.

What’s a Machine Gun

The other question the Supreme Court decided last week is a technical one:  what is a machine gun.  Again, Congress created an agency, the Alcohol, Tobacco and Firearms Administration in 1972, under the Department of Treasury (taxing all three items).  After 9-11 and the reorganization of the National Security agencies, the regulatory actions were transferred to Homeland Security, while the taxing authority remained in Treasury.  

The Firearms division is responsible for regulating legal guns, and controlling illegal weapons in the United States.   ATF defines generally what is and is not a legal firearm.  But it was back in 1934 that the Congress banned machine guns (and sawed-off shotguns).  What is a machine gun or “sawed-off” shotgun?  That was left to the ATF, just as Mefepristone and other drugs were left to the FDA.  And the ATF has a further restriction, the Second Amendment to the Constitution’s mandate to “the right to bear arms”.  ATF balances that “right” with the reality of advancing gun development (and marketing).

Into the Weeds

Unlike the Mefepristone case, in this one the Supreme Court dove into the technical “weeds” of how does a machine gun work, and what is the actual definition.  In fact, the Court majority ignored the fact the “bump stocks” allowed ninety rounds or more to be fired from a supposedly semi-automatic rifle in a minute.  It was the weapon of choice of the Las Vegas shooter, who killed sixty and wounded over 400 more – that’s one man, shooting over a thousand rounds from one window at a crowded concert venue, in less than ten minutes.

The majority determined that since “technically”, the trigger of the gun was being “pulled” multiple times by the bump stock, it was not “fully” automatic, and therefore did not meet their definition of a machine gun as “…a gun that could fire multiple rounds with one pull of the trigger”.  It’s the kind of “in the weeds” definition that administrative law is made for, and usually made by agencies just like the ATF.  But, because the Court majority seems so deeply wedded to the supporters of the Second Amendment, they became the “fact” experts as well as the determiners of legality.

Way Out

But the Court gave Congress a “way out”.  Re-define a bump-stock equipped semi-automatic rifle as a machine gun; pass a law saying so, and the Supreme Court, for the moment, might acquiesce.  At least until they decided that the whole process violates the Second Amendment.

That’s not going to happen in Congress this election year.  It certainly isn’t going to happen in the  current era of partisan divide.  And it’s not going to happen in a time when we can so quickly forget the death of so many, so quickly.  So bump-stocks are legal – again.  And everyone can have their own “not” a machine gun that fires ninety shots a minute.

Feel safer?